California Court Backs Vonage In Spam Lawsuit

In a significant victory for email marketers, the California Supreme Court said Monday that Vonage didn't violate a state anti-spam law by using more than one domain name.

"An e-mail with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false," the court wrote. The ruling effectively ended a potential class-action lawsuit brought by California resident Craig Kleffman, who alleged that Vonage's ads contained "misleading" header information.

Kleffman, who sought class-action status, alleged that he received 11 emails from Vonage that came from different domain names, including "random" and "nonsensical" ones such as ursunrchcntr.
com, urgrtquirkz.com, and openwrldkidz.com. He argued that those emails violated a California spam law that prohibits marketers from sending messages with misleading headers.

But the Supreme Court of California rejected Kleffman's claim, ruling that the state statute doesn't ban marketers from using more than one domain name, even if the name is "garbled."

ValueClick and the Email Sender and Provider Coalition had weighed in on Vonage's side. They argued in a friend-of-the-court brief that any attempt to outlaw ads from "nonsensical" domain names was unworkable.
"Due to a rapidly shrinking pool of available domain names, many companies seeking to acquire domains may have little choice but to select one that is seemingly 'random,' because nothing 'sensical' or 'non-random' is available," they argued.

The ruling is likely to make it harder for consumers to sue email marketers in California, which has its own anti-spam law that is broader than the federal Can-Spam law. While the federal law -- which bars individuals from suing for spam violations -- trumps most state spam laws, there's an exception for state laws dealing with fraud.

But the ruling won't necessarily knock out all lawsuits alleging violations of California's law, says Seattle-based cyberlaw expert Venkat Balasubramani. For instance, he says, claims that a company broke California's law by sending messages with misleading subject lines -- like "Click here for a free gift certificate," when, in fact, there is no free gift certificate -- remain viable.

Overall, these practices will not make email easier for marketers, but much more difficult to get people to open an email, let alone have their email be directed and deleted in a spam folder first. Not smart.

The issue here is not what the law should be (although that is a discussion worth having in another context), but what the actual law says. Kleffman is part of a small band of semi-professional plaintiffs who, as the 9th Circuit stated in the Gordon decision, seek to enforce their own "subjective view of what the law ought to be [which] differs substantially from the law itself."

The Supreme Court's decision is a correct reading of the law as it stands. The venue for determining whether the law should be different is in Washington and Sacramento. It is worth noting that Kleffman tried -- without success - to change California law on this point. As the 9th Circuit stated in Gordon, while anti-spam "enthusiasts may applaud his zealous counter-attack against alleged spammers, Gordon’s passion for the cause does not displace the will of [the legislature]."